Now this feels more like guilt by association. Just because Cheney isn't a cretin doesn't mean that Roberts or Alito is, and I can't help but think that this article, in the context of the previous two articles, is painting Alito and Roberts with some of Cheney's dubious ideas just because they were on his short list.

Guilt by association would be saying Roberts and Alito share Cheney's ideas because they sat next to each other at a baseball game. The article says that Cheney asked Roberts and Alito questions to find out whether they agreed with Cheney's dubious positions and, after giving their answers, they were in Cheney's top five. That's just a little bit more than guilt by association.

I guess. I'm not awfully shocked that this sinister list of five just so happens to have five leading conservative jurists whose names were prominently mentioned as possible candidates before anyone had heard of Jose Padilla.

[...]I can't help but think that this article, in the context of the previous two articles, is painting Alito and Roberts with some of Cheney's dubious ideas just because they were on his short list.

This article is kind to Cheney, in my opinion. In it he is portrayed as: i) aware enough of the legal issues surrounding his policies to be able to identify judges that support him, ii) diligent enough to be able to vet all of the nominees himself, iii) willing to disregard the President's seeming preference for diversity over judicial quality in SCOTUS nominees, and iv) ultimately vindicated when the nomination of Miers led to Bush retreatring from it and back into Cheney-approved candidates.

In the net, the article to me seems to paint Cheney as simply an intelligent, capable, and principled public official acting in the furtherance of his beliefs. Roberts and Alito were selected in part because of their perceived agreement of many of Cheney's political beliefs. This fact is both true and insignificant.

To me, the justices should be judged by what *we* think about their decisions and philosophies, not what Cheney thinks or thought about them. Thus I do not think that either the article's publication in the Washington Post or Prof. Kerr's posting of it here implies anything about Roberts or Alito.

The two-piece series on Cheney in the Washington Post that Prof. Kerr had linked to earlier cast a harsher light on the OVP and Cheney than this article. Even that series wasn't so bad; perhaps the Washington Post feels that recently the OVP is doing a good enough job of embarrassing itself that they needn't bother?

The interesting question is whether Cheney vetoed names like McConnell from the list of eleven. But, as SP noted, all five of these names were on the shortlist fairly early on.

I don't think anyone had a shortlist of at least five names' length that didn't include Roberts and Alito, so that they were on Cheney's shortlist and were eventually selected is hardly notable in and of itself.

In any event, this isn't news. Cheney's role in the meetings is reported in JCG's Supreme Conflict, except she reports that Gonzales led the meetings, not Cheney, and the only question she reports Cheney asking was about the use of foreign law.

The important thing about the article, to me, is that it supports what we'd suspected: that conformity to Cheney's views on executive power was the dispositive qualification for prospective justices.

By contrast, Cheney pressed for information that would shed light on the candidates' legal philosophies, demonstrating a sophisticated knowledge of doctrine and, without crossing the line by asking about specific cases, leaving a clear impression of the constitutional issue he considered paramount.

"I think one of the reasons that this is a primary interest of Cheney's is 9/11," the participant said. "Questions about every aspect of the government's war on terrorism could come before the courts."

It's worth contrasting this account with the reporting of Jan Crawford Greenburg, whose book on the selection process under Bush was quite enjoyable.

Either she completely missed the boat in terms of Cheney's pivotal role, or the current reporting is somewhat melodramatic in that regard. Given what we know already about the OVP, I'm inclined to credit the former, but you never really know. It's worth remembering that, to the extent Cheney vetted nominees to ensure they would be comfortable with his own peculiar views of executive power, it's not like Bush was exactly opposed to those views - it's just that Bush doesn't seem to get very involved in the nuts and bolts of how decisions get justified, so long as they do get justified.

I, for one, do not believe that Roberts and Alito would endorse the radical Cheney/Addington/Yoo theory that Article II trumps all. (But they might be inclined to try interpreting statutes such as the 2001 AUMF expansively in the government's favor, and might also be sympathetic to government arguments on state-secrets privilege and other key procedural matters.)

Actually I would be more inclined to suspect that Gonzales and Miers, preeminently loyalists, would have reliably supported the legal lines drawn by the Bush White House. At least neither one of them will ever be on the Court.

I agree that what is interesting about this article is that it gives insight into what Cheney (and Bush) would view as most important when it comes to being "reliably conservative" (because in my experience, many self-described conservatives have very different, and sometimes contradictory, notions of what it would mean for a judge to be "reliably conservative").

This is all very interesting, and yet I am confused. Exactly what is the difference between this and a president from a different political party having a team assigned to eliminate all candidates who do not believe (i.e.) a woman's constitutional right to terminate a pregnancy? I am not saying that any previous president did so, but would it be wrong?

Both vetting processes are intended to ensure that the executive's pet projects are protected. Both are intended to serve as a check on the judicial branch, and both are probably fine. What am I missing?

Actually I would be more inclined to suspect that Gonzales and Miers, preeminently loyalists, would have reliably supported the legal lines drawn by the Bush White House.

Exactly. In semi-defense of Cheney, I find it interesting that he did not push internally for Gonzales or Miers. As JaO suggests if Cheney was solely motivated by protecting his own hide, that would be the way to go I would think.

Crust: In semi-defense of Cheney, I find it interesting that he did not push internally for Gonzales or Miers.

You seemingly assume that the Post's reporting on this matter is correct and complete. But one element the Post reporters do not even pretend to know is what Bush and Cheney have said to each other. The reporters also do not know what Gonzales and Miers said to the principals; as insiders, they didn't really need to be "interviewed" to make the first cut for a nomination. Even the thin anecdote reporting hearsay reaction by Cheney to the Miers nomination is disputed within the Post story.

I think the closer analogy would be something like FDR's court-packing scheme, insofar as that was about FDR wanting to prevent the Court from checking his New Deal programs in an unending series of 5-4 votes.

Whether or not you should view that sort of thing as fine is obviously a matter of some controversy. But as a process guy, I would like to think that I would nominate judges who had the character, intelligence, and fairness to do a good job adjudicating unforeseen issues long after I was out of office. I'd also like to think those considerations would be more important to me than whether I anticipated the Court would give me the result I wanted on particular issues in the near term. But I don't have any nominating power so that is easy for me to say.

(But they might be inclined to try interpreting statutes such as the 2001 AUMF expansively in the government's favor, and might also be sympathetic to government arguments on state-secrets privilege and other key procedural matters.)

Right, thus never having to reach the "Article 11" argument, while conceding effectively the same powers. I do not find that reassuring.

Note as well: of the 5 on the short list, they had one judge who'd ruled in their favor on their pet issue (Roberts, in Padilla's case). Who'd they pick first?

ATR: Jean Edward Smith's FDR bio (which I seem to cite every day) is persuasive that the Court wasn't nearly as reactionary as made out to be. Had anyone in the White House cared more about con law when drafting the reversed statutes, things might have gone differently; and they did uphold a fair number, even before the "switch in time."

Anderson: Note as well: of the 5 on the short list, they had one judge who'd ruled in their favor on their pet issue (Roberts, in Padilla's case).

You mean Hamdan, perhaps? Yes, in that case in the D.C. Circuit, Roberts did join Judge Randolph's opinion, which I do think was based on some rather loosely articulated logic about interpreting the statutes. And of course, while Roberts recused himself on that case in the Supreme Court, Thomas and Scalia adopted an expansive interpretation of the AUMF and UCMJ statutes. Still, they never reached constitutional issues, or even signalled a constitutional position in dicta.

I feel less worried about executive-power questions if they hinge on statutory interpretation, because theoretically Congress can cure that problem by not writing ambiguous laws. (The politics are another matter.)

It seems to me that just strengthens the analogy. It is not like this was a radically anti-Executive Court before Roberts and Alito replaced Rehnquist and O'Connor. They just want even more judicial noninterference (and to not have to bother with drafting statutes at all).

Well, if Cheney saw through that Miers debacle, from the beginning, I gotta tip my hat to him. If there's anything that demonstrates Bush's failures in the White House... and there are many... that Miers nomination was it.

The interesting thing about the Miers episode is that different people had different reasons to oppose her confirmation. Some saw her as fundamentally unqualified, others as a crony, others as unreliable on "conservative" issues like affirmative action and abortion (part of the "conservative" complaint against Gonzales as well), and so on.

So, I'd be interested to know why Cheney was not "thrilled" with Miers, assuming that is true. In fact, one possible reason (one I recall a few people suggesting at the time) is that although Miers might vote the right way (however defined), she would not be an effective advocate for those positions. I suspect that is the sort of thing Cheney might believe. In other words, maybe Cheney's complaint was that based on his personal observation, Miers was no Addingtion.

Both vetting processes are intended to ensure that the executive's pet projects are protected. Both are intended to serve as a check on the judicial branch, and both are probably fine. What am I missing?

Three things.

First, all the BS about how nominees are selected for "judicial philosophy," etc. and how no one in the Administration would ever consider views on specific issues.

Second, the harumphing that it is inappropriate for the Senate to do what the President does - consider views on specific issues in the confirmation process.

Third, the pious refusal of many nominees to discuss issues during their hearings, even though they are willing to do so, albeit perhaps obliquely, when being interviewed by the VP.